SALI Vs. KERALA WOMENS COMMISSION

JUDGEMENT

(1.) THE first three petitioners are persons in the management of A. J. Group of Institutions. THE 4th petitioner is the Principal of an English Medium Residential Public School under the said management. THEy have approached this Court challenging Ext. P1 notice and seeking a direction to the respondents 1 and 2 to refrain from proceeding further and not to proceed with the enquiry contemplated as per Ext. P1 or similar notices. Ext. P1 is a summons issued under S. 15 of the Kerala Women's commission Act, 1990 to the 2nd petitioner. Similar notices are issued to other petitioners as well. THE petitioners submit that the Kerala Women's Commission act, 1990 enables the Women's Commission to enquire the unfair practices affecting women and to recommend measures and action to be taken based on the report of the enquiry. THEy submit that by Ext. P1 they are "summoned to appear as witnesses and answer allegations and the notice itself states that the petitioners may be prosecuted under Ss. 17 & 18". THEy submit that, they had appeared pursuant to the notices and explained the Commission the real situation. THEy allege that "the Director of the Commission, respondent no. 2 was adamant and insistent that the workers are to be reinstated with back wages and will not accept anything less than that". It is in the above circumstances, they have approached this court with this original petition. THEy submit that the dispute between the petitioners and the 3rd respondent and other teachers is one relating to the employment of the teachers in the educational institution and therefore, it does not come within the unfair practice. THE 3rd respondent herself has initiated action before the labour officers. It is stated that the 2nd respondent had exceeded jurisdiction in assuming powers which he does not have under Ss. 17 and 18, and should not have insisted for reinstatement of any teachers. It is also contended that the commission shall not interfere with the civil dispute or labour dispute. It is also contended that under the guise of issuing summons to witness, the commission is not entitled to summon a person as accused or to prosecute him.

(2.) A Counter affidavit has been filed on behalf of 1st and 2nd respondents. It is stated that "whenever a particular complaint is received by the Commission, preliminary enquiry to find out the root cause of the problem and the general issue which affects similar persons will be conducted by the Commission. For that purpose, the concerned parties will be summoned to the office of the Commission invoking the power vested in it under S. 15 (a) of the Kerala Women's Commission Act, 1990". It is further submitted in Paragraph 3 of the Counter affidavit that "on going through the complaint, the Commission found that there is prima facie case of unfair practice to women and therefore decided to conduct an investigation and enquiry into the matter in exercise of the powers conferred on it under S. 17 (1) (a) of the Act. Ext. P1 is issued by the Commission by virtue of the powers conferred on it under S. 15 (1) (a)of the Act, whereby they are empowered to summon attendance of any witness and examine him" (emphasis supplied ). Thus, according to the 1st and 2nd respondents, Ext. P1 is a summons issued under S. 15 (1) (a)to ensure attendance of witness. The said Section enables the Commission to exercise the powers vested in the civil court while trying a suit under the code of Civil Procedure in the matter of summoning and enforcing the attendance of the witness and examining him.

(3.) IT is stated that as mentioned above the Commission had decided to conduct an investigation and enquiry. Investigation is mentioned in S. 17 (2 ). That is a preliminary investigation to be conducted by the 2nd respondent Director. That shall be "before the issue of any process to the person complained against". From the Counter affidavit of the 1st and 2nd respondents it is evident that the petitioners are the persons against whom complaints are made. An enquiry is contemplated after the issue of process to the persons complained against. That is the enquiry contemplated in sub-s. (3) of S. 17 which reads as follows : "where the person against whom the complaint has been made, appears and show cause or fails to appear on the day appointed for that purpose the Commission may proceed to inquire into the matter in the complaint and take a decision thereon and if the Commission finds that there is unfair practice it shall recommend to the Government the action to be taken thereon or initiate prosecution", (Emphasis supplied ) This section shows that a notice has to be issued to the person against whom the complaint has been made to appear and show cause. If he appears and show cause, further proceeding shall be based on the complaint as well as the cause shown. At the same time, if the person against whom complaint is made fails to appear then also the Commission can proceed with the enquiry on the basis of the complaint. The consequences of failure to appear for enquiry by the person against whom the complaint has been made is not provided for in the action. In other words, the Commission cannot prosecute a person against whom a complaint has been made if his failure to appear to defend the complaint. The Commission can proceed on the basis of the evidence adduced by the complainant and decide about the action to be taken or whether any prosecution shall be initiated against him with respect to the action complained. Thus, if Ext. P1 is a notice issued to the 2nd petitioner as the person against whom the complaint has been made, the 1st and 2nd respondents cannot insist his personal appearance. But the Commission can certainly proceed with the enquiry against him under S. 17 (3)and will be entitled to recommend to the Government to take appropriate action or to initiate prosecution. There cannot have any prosecution under S. 17 or 18 for the failure of his appearance. IT is made clear in Paragraph 8 of the counter affidavit that "ext. P1 only says that if the parties fail to appear, action under Ss. 17 and 18 of the Act will be taken. " That does not m6an that the Commission is going to prosecute the petitioners".